Monday, January 25, 2010

The woman lowered her head and looked away, her shoulder-length dark hair covering her round face.

More than a year had passed since her uncle, a former Mexican state police commander, was kidnapped along with eight soldiers and beheaded by hit men working for a drug cartel. But she still could not bear to look at the gruesome newspaper photos of the killings her lawyer had just spread on a table.

One showed a close-up of the headless corpses lying side by side. Another showed the black plastic bag filled with their heads. Another showed the ominous, handwritten warning from the drug traffickers: "For every one of us you kill, we will kill 10."

Decapitations like this used to be associated with terrorists in the Middle East, but they have become the hallmark of a vicious drug war that has been raging in Mexico since President Felipe Calderón launched a major offensive against drug cartels in 2006. The escalating violence has claimed more than 15,000 lives, including those of hundreds of police officers like the woman's uncle. It also has terrorized the population and led to a dramatic increase in the number of Mexicans seeking a legal safe haven in the United States. Their success, however, hinges on pushing the boundaries of U.S. asylum law.

In October, the woman, a 28-year-old bookkeeper who has lived illegally in the U.S. since she was a child, asked for asylum in the United States. Now hiding in the Phoenix area, she and her family fled Mexico nearly 20 years ago because of her father's role in a military unit that fought the cartels. They feared for their lives then. Now, the situation is only worse. She hopes the graphic photos and articles about her uncle's assassination will help convince an immigration judge of this: Send her back to Mexico, and she could end up like him.

Convincing a judge that the violence across Mexico is real and getting worse will be easy. Earlier this month, for example, cartel members chopped a man into seven pieces, cut off his face and stitched it to a soccer ball. In December, Mexican marines killed drug lord Arturo Beltran Leyva in a shootout in Cuernavaca. Six days later, cartel members retaliated by killing the mother, aunt, brother and sister of a marine who participated in the raid and was killed.

The difficult part for the woman, and others like her, will be showing that she qualifies for the high legal standard of asylum. Applicants must demonstrate that they are in danger because they belong to a certain political, religious, ethnic, national or social group that is being persecuted by a government or by a group a government can't control. Most people who qualify typically are fleeing communist regimes, dictatorships and civil wars, not criminal violence.

The woman will have to show that the Mexican government has been unable to control the cartels and that she is being targeted because of her family's political involvement in the government's fight to destroy the cartels. If she or others like her are successful, experts say, the cases could expand the boundaries of U.S. asylum law by widening the interpretation of what constitutes political persecution.

• Immigration officials in the United States have long been dubious of granting asylum to people from Mexico because so many Mexicans come to this country illegally for economic reasons.

• The United States has a close relationship, geographically and politically, with Mexico, and it has committed $1.6 billion over three years to help Mexico fight the cartels.

"We don't want to embarrass the Mexican government by tacitly acknowledging that their drug-control efforts are futile by saying we are going to grant people asylum because they can't be protected in Mexico," said Stephen Yale-Loehr, a Cornell University law professor and asylum expert.

Granting asylum to Mexicans fleeing drug violence also could spur a massive wave of applicants, he said.

"The other political reality is we don't want to encourage more immigration from Mexico. We already have a lot of illegal immigration from Mexico, and if Mexicans see that other Mexicans are winning asylum in the U.S. based on this fear of persecution by the drug cartels, that would just encourage more people to try to come to the U.S. and apply for asylum," Yale-Loehr said.

Asylum cases rising

The number of asylum requests from Mexicans received at U.S. border ports jumped from 50 in 2002 to 312 in 2008, an increase of 524 percent, according to data from U.S. Citizenship and Immigration Services. Through August, 303 asylum cases had been received from Mexicans, a number on pace to exceed the fiscal 2008 total, according to CIS data.

There also has been a jump in the number of asylum applications from Mexicans already in the U.S. Those types of applications rose from 1,410 in 2006 to 2,144 in 2008, a 50 percent increase, according to CIS data. An additional 1,280 cases were filed through August 2009, below the 2008 pace.

"I think you are likely to see more, and we are already seeing significant numbers," said Donald Kerwin, a lawyer and asylum expert at the Migration Policy Institute in Washington, D.C.

Asylum claims are difficult to track because they are confidential. In fiscal 2008, 13 percent of asylum applications from Mexicans were approved, but it is unclear whether any included Mexicans fleeing cartels.

The majority of the asylum cases at the border have been filed in Texas and California by people fleeing neighboring Juarez and Tijuana, where the Mexican government has sent thousands of soldiers to quell a bloodbath of drug violence.

"People just can't come and say I'm afraid because they killed someone in my school," said Carlos Specter, an immigration lawyer in El Paso representing several journalists who recently crossed the border from Juarez and filed for asylum. They must show they are being targeted because they belong to a specific group, he said.

The cases generally fall into three categories: Police officers who fear reprisals for denouncing corruption by other officers who take bribes from drug traffickers; journalists who have reported on the drug-cartel violence or about military and police corruption and abuses; and business people afraid of being kidnapped and extorted by the cartels, Kerwin said.

In the past, asylum seekers were detained, often for months, while their cases were processed. But in December, the Obama administration said that asylum seekers who show they have a credible fear of persecution by the government - or a group the government is unwilling or unable to control - in their country would be allowed to enter the U.S. while their claims are processed.

But asylum experts don't believe the new policy signals an easing up on asylum cases for people fleeing drug violence in Mexico.

"They are moving away from detention, but that doesn't mean they will be receptive to these cases," said Lauris Wren, director of the asylum clinic at Hofstra University law school.

The woman agreed to discuss her case as long as her name was withheld because she is afraid the traffickers who killed her uncle would find her, even in Phoenix. She said her father also can't return to Mexico because the narco-traffickers have been looking for him since the family came to the U.S. in 1989.

To have a chance at asylum, she will have to persuade the judge to grant an exemption to a rule that requires asylum seekers to apply within one year of arriving in the U.S. unless circumstances in their home country have changed or because of "extraordinary circumstances."

"We argue both," Burns said. Not only has drug-cartel violence in Mexico spiraled out of control in recent years, Burns said, the woman's uncle was assassinated by drug traffickers.

If the judge agrees to move the case forward, the woman then will face the difficult task of proving she qualifies for asylum.

"I can guarantee the big issue in her case will be credibility. The judge will want to make sure she hasn't just hatched a story," said Bruce Einhorn, who was a U.S. immigration judge for 17 years in Los Angeles and is now director of the asylum clinic at Pepperdine University Law School.

Burns argues that the woman qualifies because the Mexican government has been unable to control the drug cartels and that drug traffickers will kill her if she returns to Mexico. The difficult part will be convincing a judge that she has a reasonable fear of persecution and that the fear amounts to a form of political persecution based on her family's high-profile involvement in the government's fight against narco-traffickers.

The family's involvement includes her father, who served in a special military unit that gathered intelligence against the drug cartels in the 1980s and whose life was threatened, an uncle who is a state prosecutor and who was the victim of an assassination attempt that killed three associates, an uncle who is a reporter for a state radio station, and the uncle who was beheaded.

"I am very afraid for my life and for the lives of my children," the woman said, sitting at a conference table in Burns' office. "This is a very grave situation. We are living through a terrible situation."

The beheaded uncle was identified in Mexican newspaper reports as a former state police commander in Guerrero, a state in southern Mexico that has been a major battleground for cartels warring over control of drug routes into the U.S.

On Dec. 21, 2008, the uncle was attending a Christmas festival in Chilpancinco, the state capital, about an hour from the tourist city of Acapulco, when he was abducted, according to the articles, copies of which Burns filed with Phoenix Immigration Judge Wendell Hollis. The uncle's head was found early the next morning behind a store in a sack with the heads of eight soldiers. Their bodies were found scattered around the city.

The woman said that two weeks after that, someone called her grandmother's home in Chilpancinco and threatened to kill the Phoenix woman's father, who is the brother of the beheaded uncle.